Saturday, March 08, 2008

A provision in the latest proposed US intellectual property bill, which would have increased statutory fines for online copyright infringement to a maximum of $1.5 million per track has been reportedly removed from the Prioritizing Resources and Organization for Intellectual Property (PRO IP) Act.

"A U.S. House of Representatives subcommittee has stripped out a provision in a copyright enforcement bill that would have increased fines for compilation CDs containing pirated music by 10 times or more.

Critics of the original version of the Prioritizing Resources and Organization for Intellectual Property (PRO IP) Act had complained that one provision would assess fines for each separate copyright work on a compilation work such as a CD, meaning the fines for a 10-song compilation CD would range from $7,500 to $1.5 million, instead of the current $750 to $150,000. But the House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property voted on Thursday to approve an amendment that stripped out the controversial provision."

Interested parties will recall in the autumn of last year a woman who decided to face the RIAA in court was ordered by a jury to pay $222000 for infringing the copyright in 24 songs ($9250 per song). The RIAA at the time suggested she had got away lightly since it could have been $3.6 million at the maximum statutory rate of $150k per song.

It's a pity there aren't a few more details in this story as it appears that a student is possibly facing expulsion from college for organising an Facebook group for discussing assignments. There are a lot of shades of grey when dealing with possible plagiarism cases but throw the internet into the mix and it becomes a story the press like to recycle about mass armies of cheating students. For the student's and the university's sake I hope this one is a case of innocent and entirely appropriate mutual support between students. Should that be the situation, however, don't expect to see the outcome splashed about in the media - 'student found innocent of cheating on the net' doesn't make a good headline.

Copyright law is complicated and affects loads of people, who we can divide into 3 main groups:

creators

business

the public

For copyright to work, it has to be balanced enough for all three groups to benefit. But the

best system for creators ≠ best system for business ≠ best system for the public.

So we need a messy compromise, where no group will be completely happy but all three benefit. If we did come up with a compromise we would have no idea how it might work in practice because very few people have ever tried to measure, in a rigorous scholarly way, how copyright works in real life and who the winners and losers have been.

The American film industry was convinced in the early 1980s, for example, that the video cassette recorder would destroy their industry due to home taping. Yet in the end sales of video cassettes and DVDs became their biggest source of income.

Public debate about copyright tends to be dominated by unhelpful rhetoric, language and name-calling, like "pirates", which deliberately mixes up the interests of the three main groups - creators, business and the public. So proposed changes, for example, are often dressed up as being in the interests of artists/creators, whereas in reality they are about protecting business interests or public access, depending on which side the person calling for the change happens to be on.

The copyright system is going through a bit of an upheaval and lots of people want to change it to suit themselves.

Verdict: Not great on the plain English scale (and it needs more engaging narrative on wizards and goblins) but possibly not too bad for a first attempt?

""In fantasy writing, accusations of copying are very difficult to make. You know who invented wizards? Who invented Goblins? If we were going to start paying royalties for nicking one another's ideas, we'd have all given our life savings to the Tolkien family a long time ago."

As I and others have said before, it is difficult to believe that JK Rowling, who has lavished such praise on the work of the folks behind the HP lexicon in the past, is behind the lawsuit. Creators, even those in the blockbuster category, rarely have complete control of the actions of commercial agents (and I use the term in the economics sense here to include publishers, film companies etc.) acting on their behalf. That's why it is useful, when thinking about the whole area of legal protection for creative and inventive endeavours, to separate out the three main sets of interests. Generally there are:

Very often, in public debate, the interests of the first category (creators) are claimed to coincide exactly with the interests of the second (commercial agents); and the optimisation of the welfare of creators is assumed to result in a derivative automatic benefit for the third category (the public), in access to the resultant explosion of creative enterprise.

In reality, balance in intellectual property regulation is not quite as simple as getting the IP regulatory landscape right for the supposed coincident interests of creators and the creativity business. (Not that even this could really be considered to be 'simple', if you just think, as Terry Pratchett says, of the need for new creators to have capacity to build on existing creative/inventive works, meaning those works can't be locked behind legal or other protective fences either too securely or for too long).

With three sets of agents (again thinking of 'agents' in the way an economist uses the term), each category itself incorporating a huge and diverse range of subsets each with its own unique interests, we need to deal with the reality that an optimal regulatory system for creators, even if it was possible to define such a thing, will be different to that for business interests, which in turn will be different to that for the general public.

We also need to recognise that whatever system we settle on, therefore, will be sub-optimal for at least two of our three categories of economic agents - whatever happens it will be a messy compromise which cannot, by definition, please everybody. Yet for the system to work and creativity, commercial and public access to thrive, the welfare of all three sets of agents need to be strongly protected. You could say, as Mark Rogers and I did in a paper for the World Economics Journal a few years ago, that societal welfare delivered by the intellectual property system will equal the weighted sum of benefits derived from the system by creators, agents and consumers.

Yet even if we could work out a model economic optimisation formula for the three generic sets of agents, we currently would not have the empirical evidence to run through the model in order to help create a picture of what an optimal IP system might look like. So yet again we're back to the need for some fundamental empirical research to be done in the area, which could then be usefully employed to inform policy; and get out from under the usual trading of rhetoric that passes for public debate in this widely misunderstood and really important area of public policy.

Tuesday, March 04, 2008

"written a White Paper on behalf of SPARC, Science Commons, and the Association of Research Libraries explaining the nature of the new copyright-related risk that NIH grantees face and identifying six options they have for managing that risk.

"The chairman of the House Intelligence Committee hinted Sunday that a bitter battle over an expired eavesdropping law may be moving toward a conclusion that gives phone companies the retroactive legal protections long sought by President Bush.

The chairman, Rep. Silvestre Reyes, D-Texas, said in an interview on CNN that the committee had been talking to the companies "because if we're going to give them blanket immunity, we want to know and understand what it is we're giving immunity for."

Reyes did not specify what provisions a House bill might contain. But his use of the words "blanket immunity" suggested that he might be moving toward a Senate bill, backed by Bush, that would protect phone companies that assisted in a federal program of wiretapping without warrants after the Sept. 11, 2001, terrorist attacks."

"A document obtained by Computer Weekly under the Freedom of Information Act also provides evidence that NHS Connecting for Health - which runs part of the £12.4bn National Programme for IT [NPfIT] - has quietly decided to weaken assurances given to patients about the confidentiality of records.

Doctors are angry because they say that patients were given an assurance that non-clinical staff would be unable to access the national summary care record database which is being trialled at NHS trusts in various parts of England."

So while I was looking at Tony Hirst’s work with MIT’s Open CourseWare, he must have been leaving a comment pointing to a series of feeds on the Open Learn OER site. Additionally, he suggested that there isn’t any reason why these feeds couldn’t be pulled into a blog rather neatly. And you know what, he couldn’t have been more right!

I gave it a shot on a WordPress Multi-User installation I keep around for just these sorts of things. I pulled the Open University courses feeds into individual blogs using Wp-o-Matic, a tried and true spamblogging plugin. And I am pretty excited by the results. (As an aside, I find great pleasure in re-purposing the wicked tools of spammers to make re-publishing open educational resources that much easier.)

[...]

This was a pretty amazing experiment for me because it illustrates just how much I learn from reading blogs on a daily basis. Ideas happen in a series of relations, and I so thoroughly enjoy taking other people’s genius and testing it out. When I saw the Goya class get pulled in successfully in just over a minute, I started to realize just how powerful these open resources can be once they are freed from their repositories. What is stopping K-12s and universities from setting up WPMu installations (or Drupal, or what have you) and pulling these amazing resources in? Or even pushing them out themselves? Another question that needs to be asked is how many of the other open resources out there have the stellar RSS feeds these OpenLearn OERs do?"

""As the UK considers a three strikes policy to fight copyright infringement, a new survey reports that 70% of UK broadband users would stop using P2P if they received a warning from their ISP. 'Wiggin commissioned the 2008 Digital Entertainment Survey, which found that 70 percent of all people polled said they would stop illegally sharing files if their ISP notified them in some way that it had detected the practice. When broken down by age group, an unexpected trend emerges: teenagers are generally more likely to change their behavior than older Internet users.'"

Monday, March 03, 2008

It seems that the long running eBay v MercExhange case is over. From AP:

"EBay Inc. has settled a seven-year patent dispute with MercExchange LLC that prompted an important intellectual-property ruling from the U.S. Supreme Court.

The online auction company said in a statement Thursday that it bought the three MercExchange patents it had been accused of violating. The price was not disclosed; eBay said the figure would not materially affect its financial results...

EBay said the settlement would end all claims by MercExchange. In addition to the three patents involved in the case, eBay said it would license other technologies from MercExchange.

James Boyle has, as ever, a cogently argued piece in the FT on the question of the EU database directive, copyright terms and the absence of empirical evidence in intellectual property policy making generally.

"Readers of these columns have heard me lament in the past about the fact that intellectual property policy is an “evidence-free zone”. It is the trickiest of regulatory matters to get the right level of intellectual property protection – giving incentives to creators and distributors, yet not overly burdening future innovators or imposing unnecessary monopoly prices on consumers. Getting this balance right should be a matter of empiricism, not faith. We do, for example, have good evidence about what kind of policies on database rights and on state generated data – such as maps, traffic and weather information – actually work best. In each case, the European Union has picked a plausible position – stronger rights will mean more production and innovation – and seen it convincingly falsified through empirical analysis.The same is true with the length of our copyright term. Brilliant economists, including five Nobel laureates, have pointed out that our current copyright terms are far too long. We extend copyright long beyond the time necessary to provide incentives to create and distribute...

At the end of last year, I did note a ray of hope. In two cases, both in Europe, policymakers had actually looked at evidence in order to decide what to do! The Commission studied the EU database market to see if the database right was doing any good. It was not. The UK government commissioned the Gowers Review of intellectual property policy to see whether we should extend the term of sound recordings retrospectively...

They came to the same conclusion every single disinterested academic policy review has come to: “Policymakers should adopt the principle that the term and scope of protection for IP rights should not be altered retrospectively.”

But it was not to be. Faced with a tidal wave of pressure by publishers of databases, who liked their monopolies very much, thank you, the Commission shamefully gave in and left the directive in place. While the British government showed more spine on sound recordings, the European Commission has now announced that it thinks the copyright over sound recordings should be extended to 95 years!

Mr McCreevy's harmonisation argument – appropriate given the subject – is worth thinking through. Political scientists tell us that there are types of issues where we can almost guarantee that the state will get things wrong; cases where the benefits of some proposed policy go to a small and well-organised lobby of repeat players while the much larger costs fall on a wider and less well informed public. That is why it is so important to have policies that are justified with facts rather than faith."

Anita Ramasastry has been contemplating Facebook's about-face in deciding to allow subscribers to allegedly totally delete their details from the system. She concludes that the new policies still pose significant privacy risks.

"Has Facebook become like the Hotel California, where "you can check out any time you like, but you can never leave"? Until recently, that was how it felt to Facebook users who wanted to remove themselves, but found the process was neither quick nor straightforward.

Facebook used the term "deactivate" in its privacy policy, and "deactivation," it turned out, was not the same as deletion. Instead, Facebook would keep material stored in case users later wanted to reactivate their accounts. Thus, the site reportedly warned users that "[r]emoved information may persist in backup copies for a reasonable period of time," and "[e]ven after removal, copies of user content may remain viewable."

In light of recent criticisms in the blogosphere, however, Facebook has wisely changed its policy. It now allows users to remove themselves and their data from Facebook with a single email request.

In this column, I will examine Facebook's prior policy, and analyze whether it was legal. I will also consider other facets of Facebook's data retention and privacy policies. Finally, I will argue that users need to be more cautious about signing up for social networking sites because, on such sites, their privacy cannot be fully guaranteed...

Facebook's Prior Rules Were Legal in the U.S., But Perhaps Not in the EU...

Unfortunately, even true deletion of a profile by Facebook is unlikely to address users' concerns about embarrassing information remaining accessible. Information may be cached outside Facebook, or simply saved by an individual who views it...

Most savvy Internet users will be well aware of the risks of copying and caching information posted on Facebook and similar sites. But they may not be aware that Facebook reserves the right to supplement user profiles with information it collects from other sources. In other words, on Facebook, users may not even have full control over their own profiles...

Finally, as the Electronic Privacy Information Center (EPIC) has pointed out, those users who install third-party applications - which the Facebook Platform allows -- also face privacy concerns. When someone installs an application, the application (program) can "see" or retrieve the same information the user can see...

In sum, users who think that simply removing their Facebook profiles will protect their privacy should think again. Until Facebook changes other rules, serious privacy risks will persist on the site."

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